2007 Declaration of Covenants, Conditions, Restrictions and EasementsDECLARATION OF
COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS
OF ALBERTVILLE MARKETPLACE
THIS DECLARATION is made as of this day of 2007, by
ALBERTVILLE MARKETPLACE, LLC, a Minnesota limited liability company, (hereinafter
referred to as "Declarant")
WITNESSETH:
WHEREAS, Declarant is the Owner of certain tracts of land situated in the City of
Albertville, County of Wright, State of Minnesota, hereinafter referred to as the "Property",
described as follows:
Lots 1, 2, 3 and 4, Block 1 and Outlots A, B and C, Albertville
Marketplace, according to the plat thereof on file in the Office of
the County Recorder, Wright County, Minnesota.
WHEREAS, Declarant desires to establish certain minimum standards for the
development of the Property to ensure proper use and appropriate development and maintenance
of the Lots and their Improvements (as hereinafter defined) therein contained so as to:
(a) Protect the Owners of Lots against improper use of the other Lots and
Improvements and avoid depreciation of the Lots or Property;
(b) Guard against the erection thereon of structures constructed of improper or
unsuitable materials;
(c) Ensure adequate and reasonable development of the Property;
(d) Encourage and provide for attractive Improvements, appropriately maintained as
to appearance and function;
(e) Provide adequate ingress and egress between the Lots and Lymon Avenue NE,
and in general to benefit and burden the Lots for the purpose of facilitating the
development and maintenance of the desired tone of the development and thereby
securing for the Owners of the respective Lots the full benefit and enjoyment
thereof with no greater restriction on the free and undisturbed use of an individual
Lot than is necessary.
NOW, THEREFORE, Declarant hereby declares that the Property is, and shall be held,
transferred, sold, conveyed and occupied subject to the conditions, restrictions, easements,
charges and liens hereinafter set forth, which covenants and restrictions shall run with the
Property, and be binding on all parties having any right, title or interest in the Property, their
heirs, successors and assigns, and shall inure to the benefit of each Owner thereof.
ARTICLE 1.
DEFINITIONS
1.1) "Association" shall mean and refer to Albertville Marketplace Association, Inc., a
Minnesota non-profit corporation.
1.2) "City" shall mean the City of Albertville.
1.3) "Common Elements" shall mean all parts of the Property, including
improvements thereto, from time to time owned or maintained by the Association and/or
dedicated to the City for the common benefit of the Owners, including but not limited to all
pavement located on the Property including without limitation the Road, street lighting,
parking lot lighting, the Pond, retaining walls, trails, monument signs,. wetlands, utilities and
other facilities and areas benefiting the Owners. The Common Elements shall include, but not
be limited to, those areas listed in Exhibit A attached hereto.
1.4) "Control Transfer Date" shall mean the earliest of: (i) Declarant's voluntary
surrender of the right to appoint or elect directors; (ii) the date that Declarant no longer owns
any Lot held for sale and the Lots have all been sold to Owners other than Declarant; or
(iii) the date which is five (5) years after the first conveyance by Declarant of a Lot to an
Owner other than Declarant.
1.5) "Declarant" shall mean and refer to the parties identified as Declarant herein
above, including their successors and assigns. No individual or entity acquiring an
undeveloped Lot from the named Developer shall become a "Declarant" solely by such
acquisition, but only as a result of a specific assignment of Developer and/or Declarant rights,
which assignment shall not be effective unless expressly incorporated in the instrument of
conveyance.
1.6) "Declaration" shall mean and refer to this Declaration of Covenants, Conditions
and Restrictions which shall be recorded in the Office of the County Recorder, Wright
County, Minnesota, and any amendments thereto.
1.7) "Developer" shall mean and refer to the Declarant.
1.8) "Governing Documents" shall mean this Declaration, and the Articles of
Incorporation and By-Laws, as amended from time to time, all of which shall govern the use
and operation of the Property.
1.9) "Improvement(s)" shall mean and refer to any building or other improvements as
constructed from time to time upon a Lot.
1.10) "Lot" shall mean and refer to one or more lots as designated on the plat of
land shown upon any recorded subdivision map of the Property which is intended for separate
ownership. At the present time the Lots include Lots 1, 2, 3 and 4, Block 1, Albertville
Marketplace, Wright County, Minnesota.
2.
1.11) "Member" shall mean and refer to those persons entitled to membership
in the Association as provided in this Declaration.
1.12) "Owner" shall mean and refer to the record owner, whether one or more
persons or entities, of the fee simple title to any Lot (excluding contract for deed sellers and
including in place thereof their contract for deed purchasers, except as to any Lot where
Declarant or its lawful successors or assigns is the contract seller, in which case Declarant or
its lawful successors or assigns shall be deemed the Owner of such Lot or Lots) and excluding
those, except Declarant or its lawful successors or assigns, having such interest merely as
security for the performance of an obligation.
1.13) "Permit" shall mean and refer to any permits or approvals granted by the
City authorizing and imposing restrictions and requirements on the development of the
Property as a planned development, as the same may be amended or modified by the City.
1.14) "Pond" shall mean and refer to that portion of Outlot C containing the
common storm water holding pond.
1.15) "Property" shall mean and refer to that certain real property described in
the first "WHEREAS" paragraph of this Declaration.
1.16) "Road" shall mean and refer to that certain private roadway, its
landscaping and lighting, built by Developer at Developer's cost, known as
which is legally described on Exhibit B attached hereto and incorporated herein, and
maintained, repaired, replaced and expanded and/or relocated by and at the sole cost of the
Association from time to time, providing ingress and egress for the Lots from Lymon Avenue
NE.
ARTICLE 2.
PROPERTY SUBJECT TO THIS DECLARATION
2.1) Property. The common interest community proposed on the Property (i) is
exempt from the Minnesota Common Interest Ownership Act (Minn. Stat. Chap. S 15B), (ii) is
not a flexible common interest community, and (iii) is not subject to a master association.
The Property is the only real property subject to this Declaration.
ARTICLE 3.
SUBORDINATION
3.1) All provisions, rights, terms, conditions, covenants, restrictions and agreements
contained in this Declaration and in the Articles of Incorporation or Bylaws of the
Association, or contained in any rule or regulation heretofore or hereafter adopted by the
Association, shall be subordinate and subject to all provisions, rights, terms, conditions,
covenants, and restrictions as set forth in the Zoning and Subdivision Ordinances of the City.
3.
ARTICLE 4
EASEMENTS AND PROPERTY RIGHTS
4.1) Lots. There are four (4) Lots, all of which are restricted to Commercial Use. In
addition, there are three (3) outlots being platted on the Property (the "Outlots"). Each Lot
and Outlot constitutes a separate parcel of real estate. No additional Lots may be created by
the subdivision or conversion of the Lots. The descriptions of the boundaries of each Lot and
Outlot, including the lot identifier number for each lot, is set forth on the Final Plat of
Albertville Marketplace dated (the "Plat") which Plat has been filed for
record with the Office of the County Recorder/Registrar of Titles for Wright County and
hereby incorporated herein by reference.
4.2) Recorded Plat. The Plat establishes certain restrictions applicable to the Property.
All dedications, restrictions and reservations created herein or shown on the Plat shall be
construed as being included in each contract, deed, or conveyance executed or to be executed
by or on behalf of Declarant, conveying said Property or any part thereof whether specifically
referred to therein or not.
4.3) Easements. Declarant reserves for public use the utility easements shown on the
Plat or that have been or hereafter may be created by separate instrument recorded in the
,Office of the County Recorder/Registrar of Titles for Wright County, Minnesota, for the
purpose of constructing, maintaining and repairing a system or systems of electric lighting,
electric power, fiber optic cable, telephone lines, gas lines, sewers, water lines, if any, storm
drainage (surface or underground), cable television, or any other utility the Declarant sees fit
to install in, across and/or under the Property. Declarant and its assigns further expressly
reserves the right to enter upon any Lot for the purpose of improving, constructing,
maintaining or redirecting any natural drainage pattern, drainage swales, area or easement.
All utility easements in the Property may be used for the construction of drainage swales in
order to provide for improved surface drainage of the Common Elements and/or Lots.
Declarant shall not be liable for any damages done by any utility company, water district,
political subdivision or other authorized user of such easements or their assigns, agents,
employees, or servants, to fences, shrubbery, trees and lawns or any other property of the
Owner on the property covered by said easements. If any building or other improvements
originally constructed by Declarant or constructed or erected thereafter on any Lot in
accordance with this document encroaches upon any Lot or Common Element, or, if any such
encroachment shall hereafter arise because of settling or shifting of the building or other
cause, an exclusive easement appurtenant to said encroaching Lot for such encroachment and
the maintenance thereof shall exist.
4.4) Title Subject to Easements. The Property shall be subject to such other easements
as may be recorded against it or otherwise shown on the Plat. The owners of the respective
Lots and Outlots shall not be deemed to own pipes, wires, conduits or other service lines
running through their Lots or Outlots which are utilized for or service other Lots, but each
owner shall have an easement in and to the aforesaid facilities as shall be necessary for the
use, maintenance and enjoyment of the owner's Lot or Outlot. The Declarant may convey title
to said easements to the public, a public utility company or the Association.
4.
4.5) Easements Appurtenant. All easements and similar rights burdening or benefiting
a Lot or any other part of the Property shall be appurtenant thereto and shall be permanent,
subject only to termination in accordance with the Act or the terms of the easement. Any
recorded easement benefiting or burdening the Property shall be construed in a manner
consistent with, and not in conflict with, the easements created by this Declaration.
4.6) Impairment Prohibited. No Person shall materially restrict or impair any
easement benefiting or burdening the Property; subject to the Declaration and the right of the
Association to establish and enforce reasonable rules and regulations governing the use of the
Property.
4.7) Road Easemenf.
(a) Subject to the terms and conditions set forth in this Declaration, Declarant does
hereby grant to the Association and each Owner, and the agents and invitees of each
Owner, from time to time, anon-exclusive easement over and upon, and the right to use
for pedestrian and vehicular travel and transportation purposes, the Road, as legally
described on Exhibit B attached herein, subject to and in common with Declarant, its
successors and assigns, and the rights of all other parties having any interest or rights
therein. Subject to the rights reserved by Declarant to take any action necessary or
desired in order to cause the Road or any portion thereof to be dedicated to and accepted
as a public roadway by any governmental authority, as set forth in Section 4.7(c) below,
the easement and right to use granted pursuant to this Section 4.7(a) are and shall be
permanent and perpetual, are nonexclusive, are appurtenant to and shall pass and run with
the title to each Lot.
(b) The Road shall be used strictly in accordance with the easements granted thereon.
Except as herein provided, no Owner shall obstruct or interfere whatever with the rights
and privileges of other Owners in the Road, and nothing shall be placed, planted, altered,
constructed upon or removed by an Owner from the Road, except by prior written
consent of the Association. If an Owner shall violate this Section, the Association shall
have the right to restore the Road to its prior condition and assess the cost thereof against
the Owner who violates this Section and such cost shall become a lien upon the Lot of
such Owner, which shall become due and payable upon demand. The Association shall
have the same rights and powers to collect the cost of such restoration as provided in
Article 7 for the collection of delinquent assessments. If an Owner interferes with the
rights and privileges of another Owner in the use of the Road, except as herein provided,
the Association or the aggrieved Owner may commence an action to enjoin such
interference and the prevailing party shall be entitled to recover such reasonable
attorneys' fees as the Court may allow, together with all necessary costs and
disbursements incurred in connection therewith.
(c) Notwithstanding anything provided to the contrary in this Declaration, Declarant
(1) does hereby establish and reserve the right, in its sole and absolute discretion, at any
time and from time to time, with the consent of the Association, to dedicate the Road or
any portion thereof and/or any other private roadways within the Property as public
roadways to any governmental authority designated by Declarant, subject to the
5.
acceptance thereof by the applicable authority, without requirement that the approval or
consent of any Owner or mortgagee be obtained and (2) shall be and hereby is authorized
and entitled to execute any and all agreements, documents, instruments and subdivision
plats pursuant to which the Road or any portion thereof and/or any of the private
roadways within the Property are submitted for dedication as public roadways. The
rights reserved by Declarant pursuant to this section may be assigned to the Association
which, upon such assignment, shall have the same rights reserved herein to Declarant.
4.8) Utility Easements. Commencing on the Effective Date, Developer hereby creates
a perpetual right and easement for the non-exclusive use of the Road Easement in favor of and
for the benefit of the Association for utility purposes. Such utility purposes shall include, but
.not be limited to, sewer, water, electrical, cable television and telephone purposes, including
the right to build, construct, reconstruct, rebuild, repair, maintain and operate underground
sewer, water, electrical mains, cable lines and telephone cables, and any surface connections
to such underground mains, along with the right to enter upon and open the ground for such
purposes, providing that all such openings shall be filled and the surface restored to its former
condition thereon.
4.9) Monument Sign Easement. Commencing on the Effective Date, Developer
hereby creates a perpetual right and easement for the non-exclusive use of that portion of Lot
2 Block 1 Albertville Marketplace, as legally described and depicted in Exhibit C attached
hereto and incorporated herein (the "Monument Sign Easement"), in favor of and for the
benefit of the Association to install, operate, maintain, repair and replace monument signs,
pylon signs and related landscaping (if any) thereon. The Association shall have the right to
(i) remove and not replace- the monument or pylon sign(s) and/or related landscaping, and
(ii) clear and keep clear all obstructions within the Monument Sign Easement. Developer
shall have the right to install the monument signs, pylon signs and related landscaping within
the Monument Sign Easement. The Association shall be responsible for the operation,
maintenance, repair and replacement of the monument signs, pylon signs and related
landscaping.
4.10) Governmental Authorities Easement. Declarant does hereby grant to each
governmental authority and its respective agents, employees and representatives, permanent,
perpetual and non-exclusive easements over, across, through and upon the Common Elements
for the purposes of performing such duties and activities related to law enforcement, fire
protection and medical and emergency situations on or for any portion of the Development or
any person thereon as shall be required or appropriate from time to time by such governmental
authority.
4.11) Parking Easements. Declarant does hereby grant to each Owner, and the
agents and invitees of each Owner, from time to time, anon-exclusive easement over and
upon all those parts of the Property paved or improved for parking purposes, whether such
parking exists now or in the future.
4.12) Public Under~;round Utility Easements. Each Lot over which a public
utility easement has been dedicated as shown on the recorded plat of the Property shall be
subject to a right and easement for underground general utility purposes, over that portion of
6.
such Lot which is burdened with such dedicated public utility easements. Such utility
purposes shall include, but not be limited to, sewer, water, electrical, cable television and
telephone purposes, including the right to build, construct, reconstruct, rebuild, repair,
maintain and operate underground sewer, water, electrical mains and telephone cables, and
any surface connections to such underground mains, along with the right to enter upon and
open the ground for such purposes, providing that all such openings shall be filled and the
surface restored to its former condition. All such utility easements shall jointly run in favor of
and inure to the benefit of the Owners of the Lots and any and all public authorities or utility
companies maintaining or operating any utility facility upon such easement area.
4.13) Easements for Drainage. All Lots shall be subject to an easement for the
benefit of the Owners of the other Lots over and across that portion of Outlot C containing the
Pond for the ponding and retention of storm water runoff generated from the Property and for
storm sewer pipes and lines into and out of the Pond.
4.14) Ownership Subject to Easements. All Lots and the rights of Owners in
and to such Lots shall be subject to and benefited by the easements and covenants described in
this Declaration.
4.15) Association Easements. Each Lot, and the rights of the Owners and
occupants thereof, shall be subject to the rights of the Association to a nonexclusive,
appurtenant easement on and over the Lot for the purposes of maintenance, repair,
replacement and reconstruction of the Common Elements, Improvements, and utilities serving
the Lots, to the extent necessary to fulfill the Association's obligations under the Declaration
or Bylaws.
4.16) Lift Station. Declarant shall convey and deed Outlot B, Albertville
Marketplace to the City. The City desires to use and maintain said Outlot for use as a sanitary
sewer lift station.
ARTICLE 5.
MEMBERSHIP AND VOTING RIGHTS
5.1) Membership. Every Owner of a Lot shall be a Member of the Association.
Membership shall be appurtenant to and may not be separated from Ownership of a Lot.
5.2) Voting Rights. Owners, as Members of the Association, shall have the voting
rights provided by the Articles of Incorporation and Bylaws of the Association.
ARTICLE 6.
RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
6.1) Common Elements. The Association shall be responsible for and shall exercise
the exclusive management and control of the Common Elements. The Association shall keep
the Common Elements in good order and repair and shall keep the Common Elements free
from an unreasonable accumulation of debris, ice and snow.
7.
6.2) Services. The Association may obtain and pay for the services of any persons or
entities to manage its affairs, or any part thereof to the extent it deems advisable, as well as
such other personnel as the Association shall determine to be necessary or desirable for the
proper operation of the Property whether such personnel are furnished or employed directly
by the Association or by any person or entity with whom or which it contracts. The
Association may obtain and pay for legal and accounting services necessary or desirable in
connection with the operation of the Property or the enforcement of this Declaration. Any
agreement for professional management of the Property or any other contract providing for
services by Declarant or an entity owned or controlled by the same persons as Declarant, must
provide for termination by either party without cause or payment of a termination fee on
ninety (90) days or less written notice and shall have a maximum contract term of one (1)
year, but may be renewable by agreement of the parties for successive one-year terms.
6.3) Temporary Maintenance of Dedicated Street. Under Section 1(N) of that certain
City of Albertville Planned Unit Development Conditional Use Agreement for Albertville
Marketplace dated and recorded in the Wright County Recorder's office as
document no. ,the Association is obligated to maintain the dedicated City street
on the plat of Albertville Marketplace, which is Lymon Avenue NE (the "City Street") until
such time as the City constructs a backage road extending east to MacKenzie Avenue, at
which time the City will assume full responsibility for the maintenance of the City Street.
Maintenance of the City street by the Association shall be limited to snow plowing and street
sweeping. Such temporary maintenance obligation shall be a Common Expense of the
Association.
6.4) Other Rights of Association. The Association shall have the following rights:
(a) To adopt and publish rules and regulations governing the use of the Common
Elements and the personal conduct of the Owners and their business invitees and guests
thereon and to establish penalties for the infraction thereof.
(b) To determine, establish and collect assessments or other charges incurred in
connection with the maintenance, repair, replacement or operation of the Common
Elements.
(c) To use the proceeds of assessments in the exercise of its powers and duties in the
regulation, maintenance, repair, replacement and operation of the Common Elements and
Improvements to the Lots to the extent required or permitted by this Declaration.
(d) To exercise all powers, duties and authority vested in it by the Articles of
Incorporation and Bylaws of the Association.
8.
ARTICLE 7.
ASSESSMENTS
7.1) General. Assessments for Common Expenses shall be determined and assessed
against the Lots by the Board, in its discretion; subject to the requirements and procedures set
forth in this Article 7, and the requirements of the By-Laws. Assessments shall include
annual assessments under Section 7.3, and may include special assessments under Section 7.4
and limited allocation assessments under Section 7.5. Annual and special assessments shall be
allocated among the Lots, in accordance with the allocation formula set forth in Section 7.2
below. Limited allocation assessments under Section 7.5 shall be allocated to Lots as set forth
in that Section.
7.2) Method of Assessment. Assessments against the Members shall be levied by a
majority vote of the Board of Directors of the Association (the "Board") and paid for by the
Members to the Association in accordance with the following provisions:
(a) Both annual and special assessments shall be assessed to Lots 1 through 4,
Albertville Marketplace based upon the square footage of each lot as compared to the
aggregate square footage of the Lots. The percentage of assessment shall be as follows:
Lot
Square Feet Percentage
of
Assessment
1 89,430 37.15%
2 66,250 27.52%
3 27,108 11.26%
4 57,951 24.07%
Totals: 240,739 100.00%
7.3) Annual Assessments. Annual assessments shall be established and levied by the
Board, subject to the limitations set forth hereafter. Each annual assessment shall cover all of
the anticipated Common Expenses of the Association for that year which are to be shared
equally by all Lots in accordance with the allocation set forth in Section 7.2. Annual
assessments shall be payable annually, in advance, or on such other payment basis (monthly,
quarterly or semi-annually) as Declarant or the Board determines. Notwithstanding the
foregoing, a Lot owned by Declarant and held for sale shall not be subject to annual
assessments unless Declarant consents to such assessment. Except for the variations
authorized by Sections 7.3 and 7.4, and except for premiums on insurance carried by the
9.
Association, the increase in the annual assessment for any fiscal year shall not exceed the
greater of (i) five percent (5%) of the previous year's annual assessment or (ii) the percentage
increase in the National Bureau of Labor Statistics Consumer Price Index for the Minnesota
Twin City Metropolitan Area (or comparable index if not available) for the most recent
available year, multiplied times the total annual assessment for the Association's previous
year; unless the increase is approved by the vote of sixty-seven percent (67%) of those
Owners voting, in person or by proxy, at a meeting called for that purpose, or voting by mail.
Notice of the meeting shall be sent to all Owners pursuant to the requirements of the
By-Laws. The first year's assessment shall be paid by each Owner at the time of closing of
the initial sale of the Lot. In the event that that initial Owner of a Lot is a builder who
purchases the Lot from Declarant, the builder shall not be required to pay the first year's
assessment at the closing on the initial sale of the Lot. The subsequent Owner purchasing a
Lot from the builder, however, shall pay the first year's assessment at the time of closing on
the sale of the Lot from the builder.
7.4) ~ecial Assessments. In addition to annual assessments, and subject to the
limitations set forth hereafter, the Board may levy in any assessment year a special assessment
against all Lots equally in accordance with the allocation formula set forth in Section 7.2.
Special assessments shall be used for the purpose of defraying in whole or in part the cost of
any unforeseen and unbudgeted Common Expense. Notwithstanding the foregoing, any
special assessment shall be subject to approval by the vote of a sixty-seven percent (67%) of
the Owners voting, in person or by proxy, at a meeting called for that purpose, or voting by
mail. Notice of the meeting shall be sent to all Owners pursuant to the requirements of the
By-Laws.
7.5) Limited Allocation Assessments. In addition to annual assessments and special
assessments, the Board may, at its discretion, levy and allocate assessments, among only
certain Lots in accordance with the following requirements and procedures:
(a) Any assessment or portion thereof benefiting fewer than all of the Lots may be
assessed equally and exclusively against the Lot or Lots benefited.
(b) Reasonable attorneys' fees and other costs incurred by the Association in
connection with (i) the collection of assessments and (ii) the enforcement of the
Governing Documents, or the Rules and Regulations, against an Owner or Occupant or
their guests, may be assessed against the Owner's Lot or Lots.
(c) Late charges, fines and interest may be assessed as provided in Article 12.
(d) Assessments levied to pay a judgment against the Association may be levied only
against the Lots existing at the time the judgment was entered, in proportion to their
Common Expense liabilities.
(e) If any damage to the Common Elements or another Lot is caused by the act or
omission or any Owner or Occupant, or their guests, the Association may assess the costs
of repairing the damage exclusively against the responsible Owner's Lot or Lots to the
extent not covered by insurance.
10.
(f) If any installment of an assessment becomes more than thirty (30) days past due,
then the Association may, upon ten (10) days written notice to the Owner, declare the
entire amount of the assessment immediately due and payable in full.
(g) If Common Expense liabilities are reallocated for any purpose, assessments and
any installment thereof not yet due shall be recalculated in accordance with the
reallocated Common Expense liabilities.
Assessments levied under Section 7.4(a) through (e) may, at the Board's discretion, be assessed
as a part of, or in addition to, the other assessments levied under this Article 7.
7.6) Liability of Owners for Assessments. The obligation of an Owner to pay
assessments shall commence at the later of (i) the time at which the Owner acquires title to the
Lot, or (ii) the due date of the first assessment levied by the Board, subject to the alternative
assessment program described in Section 7.3. The Owner at the time an assessment is payable
with respect to the Lot shall be personally liable for the share of the Common Expenses
assessed against such Lot. Such liability shall be joint and several where there are multiple
Owners of the Lot. The liability is absolute and unconditional. No Owner is exempt from
liability for payment of Assessments by right of set-off, by waiver of use or enjoyment of any
part of the Property, by absence from or abandonment of the Lot, by the waiver of any other
rights, or by reason of any claim against the Association or its officers, directors or agents, or
for their failure to fulfill any duties under the Governing Documents. The Association may
,.invoke the charges, sanctions and remedies set forth in Article 12, in addition to any remedies
provided elsewhere in the Governing Documents for the purpose of enforcing its rights
hereunder.
7.7) Assessment Lien. The Association has a lien on a Lot for any assessment levied
against a Lot from the time the assessment becomes due. If an Assessment is payable in
installments, the full amount of the assessment is a lien from the time the first installment
thereof becomes due. Fees, charges, late charges, fines and interest charges imposed by the
Association are liens, and are enforceable as assessments, under this Article 7. Recording of
the Declaration constitutes record notice and perfection of any lien under this Article 7, and
no further recordation of any notice of or claim for the lien is required. The release of the lien
shall not release the Owner from personal liability unless agreed to in writing by the
Association.
7.8) Foreclosure of Lien, Remedies. Alien for assessments may be foreclosed against
a Lot under the laws of the State of Minnesota (i) by action, or (ii) by advertisement in a like
manner as a mortgage containing a power of sale. The Association, or its authorized
representative, shall have the power to bid in at the foreclosure sale and to acquire, hold, lease,
mortgage and convey any Lot so acquired. The Owner and any other Person claiming an
interest in the Lot, by the acceptance or assertion of any interest in the Lot, grants to the
Association a power of sale and full authority to accomplish the foreclosure. The Association
shall, in addition to its other remedies, have the right to pursue any other remedy at law or in
equity against the Owner who fails to pay any assessment or charge against the Lot.
11.
7.9) Lien Priority. Alien for assessments is prior to all other liens and encumbrances
on a Lot except (i) liens and encumbrances recorded before the Declaration, (ii) any first
mortgage encumbering the fee simple interest in the Lot, and (iii) liens for real estate taxes
and other governmental assessments or charges against the Lot. Notwithstanding the
foregoing, if (1) a first mortgage on a Lot is foreclosed, (2) the first mortgage was recorded on
or after the date of recording of this Declaration, and (3) no Owner redeems during the
Owner's period of redemption provided by Minnesota Statutes Chapters 580, 581, or 582, then
the holder of the sheriffs certificate of sale from the foreclosure of the first mortgage shall
take title to the Lot subject to unpaid assessments for Common Expenses which became due,
without acceleration, during the six (6) months immediately preceding the first day following
the end of the Owner's period of redemption.
7.10) Voluntary Conveyances, Statement of Assessments. In a voluntary
conveyance of a Lot, the buyer shall not be personally liable for any unpaid assessments and
other charges made by the Association against the seller or the seller's Lot prior to the time of
conveyance to the buyer, unless expressly assumed by the buyer. However, the lien of such
assessments shall remain against the Lot until released. Any seller or buyer shall be entitled
to a statement, in recordable form, from the Association setting forth the amount of the unpaid
assessments against the Lot, including all assessments payable in the Association's current
fiscal year, which statement shall be binding on the Association, seller and buyer.
ARTICLE 8.
DECLARANT'S RIGHTS, RESERVATIONS, AND DUTIES
8.1) Period of Declarant's Rights and Reservations. The rights and reservations
hereinafter set forth below shall be deemed excepted and reserved in each conveyance of a
Lot whether or not specifically stated therein and in each deed or other instrument by which
any property within the Common Elements is conveyed by Declarant. Declarant shall have
the right at its sole discretion to assign and/or transfer certain or all of its rights hereunder to
other builders, developers that may develop portions of the Property. The rights, reservations
and easements hereafter set forth shall be prior and superior to any other provisions of this
Declaration and may not, without Declarant's prior written consent, be modified, amended,
rescinded or affected by any amendment of this Declaration. Declarant's consent to any one
such amendment shall not be construed as a consent to any other or subsequent amendment.
8.2) Right to Construct Additional Improvements in Common Elements. During the
period of Declarant control, Declarant shall have and hereby reserves the right (without the
consent of any other Owner), but shall not be obligated, to construct additional improvements
within the Common Elements, or any part thereof, at any time and from time to time in
accordance with the Declaration for the improvement and enhancement thereof and for the
benefit of the Association and Owners. Declarant shall no later than the Control Transfer
Date, convey or transfer such improvements to the Association and the Association shall be
obligated to accept title to, care for and maintain the same as elsewhere provided in this
Declaration.
12.
8.3) Declarant's Rights to Use Common Elements and Lots in Promotion and
Marketing of the Property. For as long as Declarant owns any Lot or Common Element,
Declarant shall have and hereby reserves the right to reasonable use of the Common Elements
and Lots owned by Declarant, and of services offered by the Association in connection with
the promotion and marketing of land within the boundaries of the Property as contemplated in
this Declaration.
8.4) Rights of Declarant. Until the last Lot is sold and conveyed to an Owner other
than Declarant, the following activities by Declarant or with the written consent of Declarant
will not be deemed violations of restrictions contained in this Declaration:
(a) The right to have an easement throughout the Common Elements and each Lot for
the purposes of pedestrian and/or vehicular ingress and egress and completion of such
construction work as is necessary to complete Improvements within the Property.
8.5) Declarant's Rights to Convey Additional Common Elements to the Association.
Prior to the Control Transfer Date, Declarant shall have and hereby reserves the right, but
shall not be obligated to, convey additional real property and improvements thereon, if any, to
the Association as Common Elements at any time and from time to time in accordance with
this Declaration, without the consent of any other Owner or the Association.
8.6) Mechanic's or Construction Liens. If, because of any act or omission (or alleged
act or omission) of any Owner, any mechanic's or construction lien shall be filed with respect
to any portion of the Property other than such Owner's Lot (whether or not such lien is valid
or enforceable as such), such Owner shall cause same to be discharged of record, or bonded,
with respect to such portion of the Property not owned by such Owner, within thirty (30) days
after being notified of the filing thereof; and such Owner shall indemnify and save harmless
all other Owners, all ground and underlying lessors and mortgagees from all costs, liabilities,
suits, penalties, claims and demands, including reasonable attorneys' fees resulting therefrom.
If such Owner fails to comply with the foregoing, any other Owner and/or the Declarant shall
have the option of discharging or bonding any such lien. If such option is exercised, the
Owner whose act or omission (or alleged act or omission) gave rise to the lien shall reimburse
the other Owner and/or Declarant who discharged or bonded such lien for all costs, expenses
and other sums of money (including reasonable attorneys' fees) in connection therewith
promptly upon demand.
8.7) Easements. Declarant shall have the right to have and use easements, for itself, its
employees, contractors, representatives, agents and prospective purchasers through and over
the Common Elements for the purpose of exercising its special declarant rights.
8.8) Control of Association. Declarant shall have the right to control the operation and
administration of the Association, including without limitation the power to appoint and
remove the members of the Board until the Control Transfer Date.
8.9) Consent to Certain Amendments. As long as Declarant owns any unsold Lot for
sale, Declarant's written consent shall be required for any amendment to the Governing
13.
Documents or rules and regulations which directly or indirectly affect or may affect
Declarant's rights under the Governing Documents.
ARTICLE 9.
APPROVAL BY ARCHITECTURAL CONTROL COMMITTEE
9.1) Purpose and Authority. In order to maintain certain standards, to prevent the
impairment of the attractiveness of the individual Lots, and to maintain the desired tone of
development of the Property, and thereby secure to each Owner the full benefit and enjoyment
of each Lot with no greater restriction on the free and undisturbed use of a Lot than is
necessary to ensure the same advantages for the other Owners, an Architectural Control
Committee is hereby established.
9.2) Membership. The Architectural Control Committee (hereinafter referred to as
"Committee") shall be composed of the members of the Board or three or more
representatives appointed by the Board. In the event of a death, resignation or removal of any
member of the Committee, the remaining members shall have full authority to designate a
successor for the remainder of the Committee member's term, as applicable.
9.3) Procedure. Before commencing any permanent Improvement on or to any of the
described Lots including, the construction or external alteration of any building, enclosure, or
:any other Improvements, the Owner shall first submit a site plan and plans and specifications,
including as applicable, in the sole discretion of the Committee, architectural, engineering and
landscape plans, for the written approval of the Committee.
The Committee's approval or disapproval shall be in writing. In the event the Committee
or its designated representative fails to approve or disapprove the Owner's proposed changes
and/or improvements within thirty (30) days after plans and specifications have been submitted
to it, such plans shall be deemed approved.
The Committee shall take into consideration the planned location of the proposed
Improvement, its conformity and harmony. of external design with existing or planned
Improvements within the Property and the location of the Improvement with. respect to
topography and finished ground elevation. Conformity by the Owner with such requirements as
may be imposed by the City in connection with the issuance of a Permit for the Lot shall not
create a presumption that such planned Improvement is compatible or in harmony with the
existing or planned development of other Lots. Conformity by the Owner with such
requirements as may be imposed by the Committee in connection with the issuance of
Committee approval shall not create a presumption that such planned Improvement is in
accordance with such requirements as may be imposed by the City in connection with the
issuance of a Permit for the Lot.
14.
ARTICLE 10.
RESTRICTIONS APPLICABLE TO LOTS
10.1) Commercial Use. All Lots shall be used for commercial or business
purposes. Residential use of the Lots is prohibited.
10.2) Exterior Alterations. No exterior additions, removals or alterations
(including changes of color or appearance) to any building on the Lot, additional fences,
plantings, hedges, walls, walkways and other structures shall be commenced, erected or
maintained, until approved by the Committee pursuant to Article 9 above.
10.3) Subdivision. No Lot shall be subdivided or split by any means whatsoever
into any greater number of Lots, nor into any plot of smaller size, without the express written
consent of the Declarant, all Members, and, as applicable, the City.
10.4) Compliance With Codes. All uses of the Lots shall as a minimum comply
with the Permit and with the zoning and other applicable ordinances and regulations of the
City and Wright County. The standards herein contained shall be considered. as requirements
in addition to said Permit and zoning and other applicable ordinances and regulations.
Nothing shall be done or kept on any Lot or any part thereof which would be in violation of
any statute, rules, ordinance, regulation, Permit, or any other validly imposed requirements of
any governmental body.
10.5) Signs. All signage (including, without limitation, identification,
advertising, or directional signs) shall be subject to the prior approval of the Committee, and,
if applicable, the City.
10.6) Leasin Any lease between an Owner and anon-Owner occupant shall
be in writing and shall provide that the terms of the lease shall be subject in all respects to the
provisions of this Declaration, the Articles of Incorporation and Bylaws of the Association,
and any rules and regulations adopted from time to time by the Board, and shall provide that
any failure by the non-Owner occupant to comply with the terms of such documents shall be
default under the lease.
10.7) Exterior Li hting. All forms of exterior lighting shall be subject to
approval of the Committee.
10.8) Antennas. Except with the prior written approval and authorization of the
Committee, no exterior telecommunications antenna or dish of any sort shall be placed,
allowed or maintained upon any portion of a Lot or the Improvements located thereon.
15.
ARTICLE 11.
MAINTENANCE
11.1) Maintenance by Association.
(a) Subject to the right to assess for the cost thereof, the Association shall provide for
all maintenance, repair or replacement (collectively referred to as "Maintenance") of the
Common Elements. If the need for Maintenance or repair of the Common Elements is
caused by the willful or negligent act or omission of an Owner, such maintenance or
repairs shall be performed by the Association and the cost of such maintenance or repairs
added to and become part of the assessment on the Lot owned by such Owner.
(b) Subject to (a) above, all maintenance and repair of individual Lots and
Improvements shall be the sole obligation and expense of the individual Owners. If any
Owner fails to properly maintain its Lot or the Improvements thereon, the Association,
after thirty (30) days prior written notice (except in the case of emergencies), shall have
the right, but not the obligation, to maintain and/or repair such Owner's Lot and
Improvements, and shall further have the right to assess any costs or expenses incurred in
such efforts against the Lot.
ARTICLE 12.
ENFORCEMENT OF EASEMENTS, RESTRICTIONS AND COVENANTS
12.1) Enforcement. Each of the easements, restrictions, and covenants as set
forth herein shall be enforceable by the Association, the Declarant as long as Declarant owns a
Lot, and by any of the Owners of any Lot which is benefited by such easement, restriction or
covenant, or any of their respective successors in title but no other person shall have any right
to enforce any such easements or restrictions and covenants, nor shall any other person, other
than the Association, the Declarant or such Owner, the Owner's tenants, invitees, and
licensees, have any interest in the easements, restrictions, and covenants hereby created and
declared. Nothing contained herein shall constitute a dedication of any interest in such
easements, restrictions, and covenants to the public or give any members of the public any
rights hereunder. Failure to enforce the easements or restrictions and covenants herein
contained shall in no way be deemed a waiver of the right to do so thereafter.
12.2) Remedies for Violation. In the event of any violation or attempted or
threatened violation of the terms hereof or any interference or attempted or threatened
interference with the rights and obligations herein granted, each of the easements, restrictions,
and covenants may be enforced by a proceeding at law or in equity or both. If any person
entitled to enforce the easements, restrictions and covenants shall elect to enforce the terms
hereof by a proceeding in equity, such person may petition for a restraining order or
injunction, temporary or permanent, prohibiting such violation or interference and demanding
compliance with the provisions, which restraining order and injunction shall be obtainable
upon proof of the existence of such violation or attempted or threatened violation or
interference and without the necessity of proof of the inadequacy of legal remedies or
irreparable harm.
16.
12.3) Cost of Enforcement. If any of the easements or restrictions and
covenants created herein are enforced by appropriate proceedings by the Association, any
Owner or the Declarant, and if the Association, such Owner or the Declarant shall prevail in
any such proceeding, such prevailing party shall be reimbursed by the defaulting Owner or
party for all or any part of the costs incurred in the enforcement thereof, including but not
limited to reasonable attorneys' fees, costs and expenses.
ARTICLE 13.
INSURANCE
13.1) Liability Insurance; Fidelity Bonds. The Board or its duly authorized
agent shall also have the authority to and may obtain a broad form of public liability
insurance, in such amounts as the Association determines necessary in connection with the
Property and all acts, omissions to act, and negligence of, the Association, its employees and
agents. The Board may also provide fidelity bonds providing protection to the .Association
against loss by reason of acts of fraud or dishonesty on the part of the Association's directors,
managers, officers, employees or volunteers who are responsible for the handling of funds of
the Association in an amount sufficient to provide no less protection than one and one-half
times the annual operating expenses and reserves of the Association.
ARTICLE 14.
GENERAL PROVISIONS
14.1) Enforcement by Association. The Association shall have the right to
enforce by a proceeding at law or in equity all restrictions, conditions, covenants, reservations,
liens, and charges now or hereafter imposed by the provisions of this Declaration, including
but not limited to the collection of all assessments. In the event that the Association should
employ the services of an attorney in connection with a breach of the terms hereof or in
connection with the enforcement of the terms hereof, and if the Association shall prevail in
any such action, such Owner shall pay in addition to all other sums due the Association's
reasonable attorneys' fees, costs, and expenses. The failure by the Association to enforce any
covenant or restriction herein contained shall in no event be deemed a waiver of the right to
do so thereafter. If these restrictions are enforced by appropriate proceedings by an Owner,
such Owner may be reimbursed by the Association for all or any part of the costs incurred as
the Board shall in its sole discretion determine.
14.2) Severability. The invalidation of any one of these covenants or
restrictions by legislation, judgment or court order shall in no way affect any other provision
which shall remain in full force and effect.
14.3) Amendments. Except as otherwise expressly provided in Section 8.9
herein, the provisions of this Declaration may be amended during the first ten (10) years by an
instrument signed by Members entitled to cast no less than ninety percent (90%) of the
membership votes, and thereafter by an instrument signed by Members entitled to cast no less
than two-thirds (2/3rds) of such votes. No amendment shall be effective until it shall have
17.
been properly recorded. Amendments or modification of the Permit by the City shall not be
construed as an amendment to this Declaration for purposes of this paragraph.
14.4) Limitation on Declaration. The covenants, restrictions, easements,
conditions, and reservations imposed or established by or created under this Declaration or
any amendment hereto shall run with and bind the Property for a period of thirty (30) years
from the date of the recordation of this Declaration and may be enforced as provided herein.
After the expiration of said thirty (30) year period, all of such covenants, restrictions,
easements, conditions, and reservations shall continue to run with and bind the Property for
successive periods often (10) years each, unless removed, changed or amended in whole or in
part by Members as contemplated in Section 13.4 above, and evidenced by a recorded
instrument executed by duly authorized officers of the Association.
14.5) Construction and Conflict. In the event of any apparent conflict between
the Governing Documents and the terms of this Declaration, this Declaration shall control. In
the event of any apparent conflict between the Articles of Incorporation and the Bylaws of the
Association, the terms of the Articles shall control.
14.6) Rules and Regulations. The Board may from time to time adopt such rules
and regulations as the Board in its sole discretion deems appropriate or necessary, including
without limiting the generality of the foregoing, additional rules and regulations concerning
the use of Common Elements, and additional rules and regulations concerning the appearance
of each Lot.
14.7) Notices. Any notice required to be sent to any Owner under the provisions
of this Declaration shall be deemed to have been properly sent when mailed postage prepaid
to the last known address of the person who appears as Owner on the records of the
Association at the time of such mailing.
14.8) Singular and Plural. The singular shall be deemed to include the plural
wherever appropriate, unless the context clearly indicates to the contrary.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
18.
IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has executed this
instrument as of the day and year first above written.
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN)
AL RTVILLE MARKETPLACE, LLC
i ~ ~ ~~ ~ ~
By: 'r
ilip A. M rris, ~ ief Manager
The foregoing instrument was acknowledged before me this ~ tiay of July, 2007, by
Philip A. Morris, the Chief Manager of Albertville Marketplace, LLC, a limited liability
company organized under the laws of the State of Minnesota, on behalf of such entity.
~/~ ~~ Y ANNE CHELSEA LOHMER
isi`` -NOTARYPUBLIC-MINNESOTA
V~,,~.~ My Commission Expires Jan. 31, 201
Notary Public
THIS INSTRUMENT DRAFTED BY:
LARKIN, HOFFMAN, DALY & LINDGREN, LTD.
1500 Wells Fargo Plaza
7900 Xerxes Avenue South
Bloomington, Minnesota 55431
(952) 835-3800
1120884.1
19.
Exhibit A
Description of Common Elements
Outlot A
2. Outlot C
3. The Road
4. The Pond
5. Monument Sign Easement
6. All pavement on the Property now or in the future
7. Street and Parking Lighting
Exhibit B
Description of Road Easement
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MORTGAGEE CONSENT
TO
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND
EASEMENTS OF ALBERTVILLE MARKETPLACE
Vermillion State Bank, the holder of a mortgage on a portion of the Property, the development of
which is governed by the foregoing Declaration of Covenants, Conditions, Restrictions and
Easements of Albertville Marketplace (the "Agreement"), hereby consents to the execution and
filing of the Agreement and subordinates its interest as mortgagee in the Property to the
Agreement.
Dated this ~~`~
STATE OF MINNESOTA
ss.
COUNTY OF y ..~-~ ,~c e, ~` ~,
VERIv1iLLICN STATE nAivii
Its: Y~~s~ 1'~t~af r:~ ~
The foregoing instrument was acknowledged before me this ~~4'~'day of .~l~zi ,
2007, by U ~ ~+ ~~? +~1,°i~' the v, c~ ~~,~ - ~,~ ~` of VERMILLION
STATE BANK, a Minnesota corporation, on behalf of the corporation.
~~~~~~
~r„4~!,~ ~. ~1pAN M, Q~RIEN
;~~ ~~_ Notary Public
~: ~, Minnesota
~~~;"'may My Commission Expires January 31, 200
day of July, 2007.
Notary lic
1145781.1
TEMPORARY EASEMENT
~~
THIS TEMPORARY EASEMENT is made as of y ~, 2007, (the
"Effective Date") by THE CHURCH OF SAINT ALBERT, a Minnesota nonprofit company
("Grantor") and ALBERTVILLE MARKETPLACE, LLC, a Minnesota limited liability
company, ("Grantee")
RECITALS
1. Grantor is the owner of certain real property in Wright County, Minnesota,
which is legally described on Exhibit A attached hereto (the "Grantor
Parcel").
2. Grantee is the owner in fee simple of real property in the County of
Wright, which is adjacent to the Grantor Parcel and legally described on
Exhibit B attached hereto
3. Grantee desires to use a portion of the Grantor Parcel in connection with
the overall grading of the Grantee Parcel, and to install a silt fence.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by
Grantor:
1. TempOTary Easement. Grantor hereby grants to Grantee, its successors and
assigns, a temporary easement (the "Easement") over and across those portions of the Grantor
Tract, as described and depicted in Exhibit C, for grading purposes in connection with Grantee's
grading and development of the Grantor Tract. The Easement shall .run with the title to the
Grantor Tract and Grantee Tract and shall inure to the benefit of and be binding upon Grantor
and Grantee and their respective heirs, successors and assigns, including, but not limited to all
subsequent owners of the Grantor Tract.
2. Easem ura 'on. This Temporary Easement shall terminate at 5:00 p.m.
Central time on 3 / , 200
3. Use of Property. Grantor hereby agrees not to perform or allow or cause the
construction of any improvements on the Easement which could damage or obstruct the
Easement or interfere with the Grantee's right to grade and construct and maintain the silt fence
within the Easement.
4. Restoration. Upon the expiration of the Easement, Grantee shall be obligated to
reasonably repair and restore the Easement to a safe condition, including seeding any disturbed
areas with grass seed.
5. Indemnification -Except to the extent claims arise from Grantor's negligence or
willful misconduct, Grantee shall indemnify and hold harmless Grantor from third-party claims
made as a result of, use and occupation of, damage and/or liability resulting from the work on the
Grantor Parcel as contemplated herein.
6. Governing Law. This Temporary Easement shall be construed and governed by
the laws of the State of Minnesota.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Temporary Easement
on the Effective Date.
STATE OF MINNESOTA )
ss.
COUNTY OF )
THE CHURCH OF SAINT ALBERT
Its:
ALB R ILLE MARKETwPLACE, LLC
By: ,
hi ip A. Mo 's, Chief Manager
~Jafyy
The foregoing instrument was acknowledged before me this ~ ~~~' day of 3~xrf2, 2007, by
9°h t:~4'1 ,the ~r°~t~~ tcl~re~1'of The Church of Saint Albert, a Minnesota nonprofit
corporation, on behalf of the corporation.
!~ < Ay.
Notary Publi~ ,
STATE OF MINNESOTA )
) ss. TORI ANN LE®NHARDT
COUNTY OF }~ e In ) 'NOTARY PUBLtC-(MINNESOTA
4~y Gomm. Exp. Jan. 31, 2~9
The foregoing instrument was acknowledged before me th>. ~c~`~~"" , ,
Philip A. Morris, the Chief Manager of Albertville Marketplace, LLC, a Minnesota limited
liability company, on behalf of the company.
/~ .~'~a ANNE CHELSEA CORNER
,~,a ~
~; ~~ $ NOTARY PUBLIC-MINNESOTA
~,,~~ My Commission Expires Jao. 31, 2010
Notary Public
2
THIS INSTRUMENT WAS DRAFTED BY:
Larkin Hoffman Daly & Lindgren Ltd.
2 500 Wells Fargo Plaza
7900 Xerxes Avenue South
Minneapolis, Minnesota 55431-1194
(952) 835-3800 (RN23)
l 136833.2
EXHIBIT A
LEGAL DESCRIPTION OF GRANTOR PARCEL
Beginning at the Northwest corner of Section 6, Township 120, Range 23, and running
South on the Section line 33 feet for a starting point, thence South on the Section line 30
rods, thence East at right angles 16 rods, thence North 30 rods, then West parallel with
the Section line 16 rods to the place of beginning.
EXHIBIT B
LEGAL DESCRIPTION OF GRANTEE PARCEL
That part of the Northeast Quarter of the Northeast Quarter of Section 1, Township 120,
Range 24, Wright County, Minnesota, that lies North and East of the right of way of
Interstate Highway Number 94.
EXHIBIT C
LEGAL DESCRIPTION AND DIAGRAM OF TEMPORARY EASEMENT
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